Meier v. Shinseki et al

Filing 32

ORDER REQUESTING ADDITIONAL BRIEFING (whalc2, COURT STAFF) (Filed on 4/24/2013) (Additional attachment(s) added on 4/24/2013: # 1 Certificate/Proof of Service) (wsn, COURT STAFF).

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 TERRY L. MEIER, 11 For the Northern District of California United States District Court 10 12 No. C 13-00189 WHA Plaintiff, v. ORDER REQUESTING ADDITIONAL BRIEFING 13 ERIK K. SHINSEKI, et al. 14 Defendants. / 15 16 In this FTCA action, defendants filed a motion to dismiss. The hearing for that motion 17 was postponed until May 9, 2013, pending plaintiff’s motion to disqualify the undersigned judge. 18 This order requests additional briefing from both parties regarding the timeliness of 19 plaintiff’s complaint. Plaintiff cites the FTCA as the sole basis for subject-matter jurisdiction in 20 this action. Under 28 U.S.C. 2401, 21 24 A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 25 28 U.S.C. 2401(b) (emphasis added). Our court of appeals has held that the six-month statute of 26 limitations is absolute, cannot be equitably tolled, and a jurisdictional matter: “the six-month 27 statute of limitations in § 2401(b) is jurisdictional and . . . failure to file a claim within that time 28 period deprives the federal courts of jurisdiction. Accordingly, the doctrines of equitable 22 23 1 estoppel and equitable tolling do not apply.” Marley v. United States, 567 F.3d 1030, 1038 (9th 2 Cir. 2008) (emphasis added). 3 According to plaintiff, he submitted a claim to the VA on July 5, 2012 (Compl., Exh.13). 4 The VA rejected his claim in a letter dated July 12, 2012 (Compl., Exh. 16). The record shows 5 that plaintiff’s complaint was filed on January 14, 2013, at which point the six-month period 6 appeared to have passed. 7 This order requests additional briefing from both parties as to why this action should not 8 be dismissed in light of Marley. The parties’ responses must address the following questions: 9 (1) can plaintiff’s letter to the VA dated July 5, 2012, be properly construed as an administrative claim; (2) can the VA’s letter to plaintiff dated July 12, 2012, be properly construed as a final 11 For the Northern District of California United States District Court 10 denial of a claim under Section 2401(b); and (3) is July 12, 2012, the proper date to use as the 12 start of the six-month period under Section 2401(b)? Furthermore, in Adams v. United States, 13 our court of appeals held that in order to invoke the FTCA’s statute of limitations, the 14 government “must also strictly comply with § 2401(b)’s requirement that administrative denial 15 letters be sent by certified or registered mail.” 658 F.3d 928, 933 (9th Cir. 2011). 16 The parties’ briefs must be limited to five pages, and submitted by NOON, MAY 3, 2013. 17 In light of the hearing scheduled before Judge Jon Tigar on plaintiff’s motion to disqualify the 18 undersigned judge, the Court will defer ruling on the pending motion to dismiss until after the 19 motion to disqualify is adjudicated. 20 21 IT IS SO ORDERED. 22 23 Dated: April 24, 2013. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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